Two cousins have been convicted of kidnapping a gay man in Kentucky, but the Justice Department failed in the same case to win a guilty verdict in the first test of an expanded hate crimes provision covering sexual orientation.

The jury verdict on Wednesday against David Jason Jenkins, 37, and Anthony Ray Jenkins, 20, of Harlan County stemmed from an April 2011 kidnapping of Kevin Pennington, 29, who managed to escape, according an indictment.

The men planned to assault Pennington because of his sexual orientation, the indictment said in part. But a federal jury in Laurel County acquitted them of committing a hate crime.

Federal hate crimes law was expanded in 2009 to include a victim's perceived sexual orientation, gender or disability.

It was named for Matthew Shepard and James Byrd Jr. Both men were attacked and killed in separate incidents in 1998 that drew national attention to toughening hate crimes laws broadly. Shepard was gay and Byrd was killed in a racially motivated attack. He was black.

Although the government failed to convict the Kentucky men on hate crime charges this week, the Justice Department's top civil rights official, Thomas Perez, said prosecutors would not be discouraged from bringing other cases.

Perez called the kidnapping a "vicious and criminal act" and said his department would vigorously investigate possible hate crimes.